New York State Court of Claims

New York State Court of Claims

PERRY-SCHEFFEL v. THE STATE OF NEW YORK, #2006-015-546, Claim No. 108115


Synopsis


Claim for excessive force by court officers was dismissed. Degree of force used under the circumstances was reasonable.

Case Information

UID:
2006-015-546
Claimant(s):
URSULA PERRY-SCHEFFEL
1 1.By order dated October 23, 2003 the caption of this claim was amended sua sponte to reflect the only properly named defendant.
Claimant short name:
PERRY-SCHEFFEL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
By order dated October 23, 2003 the caption of this claim was amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108115
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Melvin T. Higgins, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kevan J. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 2, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The first witness called to testify at trial was the claimant's husband, Bernard Scheffel, who testified that he arrived in the parking lot outside the Ulster County Family Court in Kingston, New York at approximately 5:00 p.m on August 9, 2002. He pulled into a parking space and waited in his car for his wife to exit the court building. Mrs. Perry-Scheffel, the claimant, was attending a Family Court proceeding and she and her husband had agreed to meet at the courthouse prior to going to dinner together.

Mr. Scheffel testified that as he was sitting in his car he noticed Vincent Perry, his wife's brother, leaving the Family Court building and walking quickly toward him across the parking lot. The witness testified that as Vincent Perry approached his vehicle he began saying vulgar and offensive things about the witness's wife and children. Mr. Scheffel exited his car and began having words with Vincent. As he stood facing Vincent the witness testified that he saw the claimant walking out of the Family Court building and across the parking lot "at a harried pace" to the site of the altercation. The claimant spoke to her husband advising him not to continue interacting with her brother. Mr. Scheffel does not recall his wife using vulgarity or obscene language, nor does he recall the claimant making any threats directed at Vincent.

The witness testified that shortly after his wife arrived at the scene he backed away from Vincent and moved with his wife to a position near his car. Vincent entered his own vehicle and appeared to drive away. However, Vincent returned and a second altercation occurred approximately 50 feet from the courthouse entrance.

The witness testified that he and his wife were near his car when he first saw Court Officer James Kennedy walking toward them from the courthouse entrance. Mr. Scheffel was facing the court building and could observe CO Kennedy as he walked across the parking lot while his wife was facing Mr. Scheffel with her back to the courthouse entrance. The witness testified that immediately upon arriving at their location CO Kennedy grabbed the claimant's arm from behind. Claimant then told Officer Kennedy to get his hands off her and uttered "a few curse words". Court Officer Kennedy began screaming "say it again" repeatedly in claimant's face and continued to grab her arm for five to ten seconds before releasing her. Mr. Scheffel denied that his wife tried at any time during the altercation to pull her arm away from Officer Kennedy. The witness testified that he did not hear anyone inform the claimant that she was being placed under arrest and that he only vaguely recalls seeing Court Officer Morrisey who arrived as the altercation was "just about over". Mr. Scheffel testified that his wife was escorted into the Family Court building and was later transported by police vehicle to the Kingston Police building in downtown Kingston. She was released several hours later.

On cross-examination Mr. Scheffel testified that he has been married to the claimant for fourteen years and had agreed to pick her up at the courthouse for dinner that evening. The witness was aware that the Family Court proceeding in which his wife was participating involved allegations that the claimant had assaulted her brother. Mr. Scheffel could see that Vincent was upset as he walked toward him in the courthouse parking lot. As the witness and Vincent Perry exchanged words Mr. Scheffel observed his wife walking across the parking lot toward them. When she arrived at their location the claimant said to Vincent "why don't you go to the methadone clinic you fucking asshole[2]". He described the exchange between the claimant and Vincent as limited and lasting only a "couple minutes" although the discussion was loud and heated.

According to the witness he was able to observe Court Officer Kennedy walking toward the area. Officer Kennedy approached the claimant from behind and grabbed her right arm pulling her away from the altercation. The witness stated that the claimant did not try to pull away from Officer Kennedy but said to him "get your hands off me you fucking rent-a-cop". This allegedly enraged Court Officer Kennedy who told the claimant to "say it again" several times. Court Officer Morrisey then arrived at the scene and he, the claimant and Court Officer Kennedy returned to the Family Court building. The witness was aware that the claimant was convicted of disorderly conduct as a result of the incident.

On redirect Mr. Scheffel testified that although both Officer Kennedy and Officer Morrisey were in uniform, Officer Kennedy did not announce himself as a court officer and approached the claimant from behind prior to grabbing her right arm.

The claimant Ursula Perry-Scheffel was called to the stand and testified that on August 9, 2002 she was involved in a Family Court proceeding arising from an incident between the claimant and her brother Fred Perry. The claimant exited the courthouse at approximately 5:00 p.m. intending to meet her husband for dinner. As she walked through the lobby she noticed Court Officer Kennedy sitting at his station and, as she exited the building, observed her husband arriving in the courthouse parking lot and her brother Vincent walking away from the courthouse and toward the location where her husband's car was parked. Vincent Perry continued walking toward Mr. Scheffel and the claimant observed the two begin arguing. She testified that she twice asked Court Officer Kennedy to go outside to monitor the situation but that he refused. As she turned away from Officer Kennedy and approached the courthouse door she saw that her husband and Vincent had both entered their respective vehicles and appeared to be leaving the scene. The claimant yelled to her husband who was backing out of his parking space telling him to stop. Mr. Scheffel then pulled back into the space and exited his car.

The claimant testified that as she walked toward her husband she heard him say "we're going to settle this". Claimant attempted to dissuade her husband from further interaction with Vincent and the two began walking back toward the courthouse. Vincent then pulled his vehicle around and in front of the claimant and her husband and began to say vulgar and offensive things about them and their children. As the claimant's husband began walking toward Vincent's car she reached out and took her husband by the arm and then told Vincent to "go back to the methadone clinic you fucking asshole" at least once and perhaps twice. As the claimant reached out and took hold of her husband's arm to prevent him from moving closer to Vincent she was in turn grabbed from behind by her right arm. Claimant testified that she did not know who was pulling her by her right arm but that she was caused to turn and then observed that it was Court Officer Kennedy. As she was being turned and before she recognized Court Officer Kennedy claimant attempted to pull her arm away. Upon recognizing Officer Kennedy the claimant said "get your hands off me you fucking rent-a-cop" whereupon Kennedy released her arm and screamed "say it again" several times. Claimant denies that she repeated the statement.

Claimant and Officer Kennedy walked back to the courthouse building where the claimant was later taken into custody by two City of Kingston police officers. Claimant was handcuffed and taken to the "police station" . Claimant identified Exhibit 1 as a three-page document containing two separate complaints accusing the claimant of misdemeanor resisting arrest and disorderly conduct. Both complaints are signed by Court Officer James Kennedy and the claimant acknowledged that she was subsequently convicted of disorderly conduct in Kingston City Court. According to the claimant she first saw Court Officer Morrisey shortly after Court Officer Kennedy took hold of her arm but otherwise had no physical or verbal contact with Court Officer Morrisey. Claimant reiterated that she was unaware who had grabbed her arm because the individual had approached her from behind.

On cross-examination the claimant acknowledged that as a result of the Family Court proceeding she had attended previously during the day on August 9, 2002 a protective order was issued against her and in favor of her brothers. She reiterated her testimony from her direct examination in which she stated that her arm was grabbed from behind at the same time she had reached out to take hold of her husband's arm to prevent him from continuing forward toward her brother Vincent. Since she did not know who had taken hold of her arm she attempted to pull her arm away, a reaction she described as "automatic". The force on her arm caused her to turn and she recognized that the individual who held her arm was a uniformed officer. The officer released her arm and the claimant stated "get your hands off me you fucking rent-a-cop." It was only after the aforementioned statement to Officer Kennedy that Court Officer Morrisey arrived at the scene. On redirect examination the claimant testified that her right arm was grabbed from behind causing her to spin around and, as she turned, she sought to free her arm by pulling away at which time she stated "get your hands off me you fucking rent-a-cop". Claimant acknowledged that she was aware at the time that she was speaking to an individual in uniform and of some apparent authority.

Claimant rested at the conclusion of Ms. Perry-Scheffel's testimony.

Defendant called James Kennedy to the stand who testified that he is presently employed by the Office of Court Administration as a Senior Court Officer. Officer Kennedy attended the Court Officer Academy in 1993 and has been employed as a court officer for approximately 12½ years. He testified that as a result of his training at the Court Officer Academy as well as additional periodic instruction he is aware that court officers are permitted to use that level of force which the officer determines to be necessary under the circumstances. Officer Kennedy testified that he does not know claimant's brothers Fred or Vincent Perry.

With regard to the events of August 9, 2002 the witness testified that he was at the ground floor security post near the entrance to the court building at or around 5:00 p.m. He was approached by claimant's attorney and informed of an altercation occurring in the parking lot between claimant's husband and her brother Vincent. Officer Kennedy went outside and observed claimant's husband Bernard and her brother Vincent exchanging words. Mr. Scheffel and Vincent Perry appeared at that time to be ending their argument and Officer Kennedy continued to observe them. The claimant then exited the courthouse building and began yelling "stop him, stop him" and "why don't you go back to the methadone clinic you fucking asshole" . Both Mr. Scheffel and Vincent were in their respective vehicles at this time. Claimant's husband pulled his vehicle back into the parking lot, exited the vehicle and began approaching Vincent Perry's automobile as both Officer Morrisey and Officer Kennedy entered the parking lot. Court Officer Morrisey, who had exited the courthouse at approximately the same time as the claimant, positioned himself in front of and to Officer Kennedy's, right attempting to mediate the dispute between Mr. Scheffel and Vincent Perry. The claimant walked by Officer Kennedy on his left side and from slightly behind him yelling obscenities and approaching her brother Vincent's car. Officer Morrisey was standing between Mr. Scheffel and Vincent Perry and had extended his left arm outward. Claimant approached Officer Morrisey from behind and to the left and began pushing against Officer Morrisey's extended left arm. The witness testified that he instructed the claimant to step away from Officer Morrisey but that his order was ignored. He repeated the command which was again ignored and thereafter walked up to the claimant, gripped her upper right arm and directed her away from Officer Morrisey. He testified that both he and Officer Morrisey were in uniform and that as he directed the claimant away from Officer Morrisey she pulled her arm away and said "take your hands off me you fucking rent-a-cop". Officer Kennedy then informed the claimant that she was under arrest for disorderly conduct and resisting arrest.

On cross-examination Officer Kennedy testified that he was at his post near the entrance to the Courthouse building on August 9, 2002. He recalled being informed by attorney Higgins of an altercation involving claimant's husband and brother and exited the building in response. Although the officer testified that it is possible the claimant had asked him to go outside previously, he could only recall the request of attorney Higgins.

Officer Kennedy testified that he exited the building and took a few steps toward the area where Mr. Scheffel and Vincent Perry were located. He then observed that both individuals appeared to be ending their argument and were walking away toward their respective vehicles. Court Officer Morrisey then exited the building and approached Mr. Scheffel and Vincent Perry. Both individuals eventually entered their vehicles. Mr. Scheffel started his car and was pulling out of the courthouse parking lot and then pulled back in, drove to the location where Vincent Perry was sitting in his car, exited his vehicle and began yelling at Vincent. Vincent Perry did not leave his vehicle. Officer Morrisey positioned himself between claimant's husband and Vincent Perry approximately 10 feet in front of Officer Kennedy. At that time the claimant exited the courthouse and began yelling as Officer Morrisey was instructing Mr. Scheffel and Vincent Perry to disperse. The claimant continued yelling, walked past Officer Kennedy and approached Vincent Perry's vehicle. In doing so the claimant came in contact with and attempted to push through Officer Morrisey's extended arm. Officer Kennedy testified that although he did not identify himself as a court officer he instructed the claimant twice in a loud voice to step away from Officer Morrisey. Officer Kennedy testified that he was concerned because he saw the claimant approaching Officer Morrisey from the rear on his left side. According to Officer Kennedy, Court Officer Morrisey is left-handed and wears his gun on his left side. As the claimant failed to comply with his direction Officer Kennedy approached claimant from the rear and took possession of her arm in order to direct her away from Officer Morrisey. Claimant was thereafter placed under arrest.

Officer Kennedy agreed that he was angry when the claimant referred to him as a "rent-a-cop" but denies that he told the claimant to "say it again".

On redirect examination Officer Kennedy testified that he had spoken with the claimant earlier that day while he was in uniform. He reiterated that he instructed the claimant to step away from Officer Morrisey at least twice.

The defendant next called Court Officer James Morrisey who testified that he has been employed by the Office of Court Administration as a court officer for approximately 11½ years during which time he has used physical force in carrying out his duties approximately 5 times. Officer Morrisey testified that in his experience Family Court is more emotional and therefore more volatile than other courts in which he has worked.

On August 9, 2002 Officer Morrisey was assigned to the Ulster County Family Court. From his station on the second floor he overheard a loud argument. He walked downstairs and found no one in the lobby of the courthouse building. He then walked outside and observed Officer Kennedy standing just outside the building entrance and Bernard Scheffel and Vincent Perry walking toward their respective vehicles. He estimated that Mr. Scheffel and Vincent Perry were approximately 40 to 45 feet from the entrance to the courthouse. As claimant's husband and Vincent Perry were walking to their cars Officer Morrisey and Officer Kennedy began walking toward them. At that time the claimant exited the building screaming "stop him, stop him". She also was yelling at Vincent "why don't you go to the methadone clinic you fucking asshole." By this time Mr. Scheffel and Vincent Perry were in their cars and both appeared to be exiting the parking lot. Claimant's husband then cut through several parking spaces, brought his vehicle to a stop, exited the vehicle and began yelling at Vincent. Officer Morrisey approached the two and raised his left arm toward Mr. Scheffel. Vincent Perry remained in his car to the witness's right.

Officer Morrisey heard claimant yelling and saw her approaching him from behind. Officer Kennedy was three to four feet behind the witness and to his left. Claimant approached Officer Morrisey from behind and attempted to walk through or past his extended arm toward Vincent Perry. According to the witness Officer Kennedy then took hold of claimant's right arm and instructed her to "step away from the officer". Claimant then pulled her arm away from Officer Kennedy and told him to "get your hands off me you fucking rent-a-cop". Officer Kennedy then instructed the claimant that she was under arrest and Officer Morrisey and Officer Kennedy escorted the claimant back into the courthouse building.

On cross-examination Officer Morrisey testified that as he exited the building he observed Officer Kennedy just outside the building entrance and that the two then began walking toward Mr. Scheffel and Vincent Perry who were in the courthouse parking lot. Both gentlemen entered their vehicles and appeared to be leaving when the claimant exited the courthouse building screaming. Mr. Scheffel pulled his car through several parking spaces, left his car and approached Vincent Perry's vehicle. Officer Morrisey put his arm out toward Mr. Scheffel and instructed him to stop. Claimant approached and attempted to walk through his extended arm when Officer Kennedy took hold of the claimant's arm and instructed her to step away. The claimant then pulled her arm away from Officer Kennedy. Officer Kennedy did not appear to the witness to be angry and he did not hear the officer tell the claimant to "say it again". The witness testified that he did not hear Officer Kennedy identify himself as a court officer although he was at the time primarily involved in attempting to mediate the dispute between Mr. Scheffel and Vincent Perry. The claimant did not complain to the witness that she was injured although he did later overhear her requesting ice.

The defendant rested at the conclusion of Court Officer Morrisey's cross-examination and thereafter moved to dismiss the claim for failure to establish a prima facie case. The Court reserved decision on the motion which is now denied.

Law enforcement officers are permitted to use force which is reasonable and appropriate under the prevailing circumstances (see, Wester v State of New York, 247 AD2d 468; Higgins v City of Oneonta, 208 AD2d 1067, lv denied 85 NY2d 803; Arnold v State of New York, 108 AD2d 1021, appeal dismissed 65 NY2d 723; Stein v State of New York, 53 AD2d 988)" (Redwood v State of New York, Ct Cl, September 20, 2002 [Claim No. 97098. UID # 2002-028-506], Sise, P.J., unreported[3]) and claims of excessive force must be examined within the context of the circumstances in which they arose (cf., Passino v State of New York, 175 Misc 2d 733, 736, affd 260 AD2d 915, 916; lv denied 93 NY2d 814; Lewis v State of New York, 223 AD2d 800). In assessing whether force was necessary or whether the amount of force used was reasonable "a Court must examine the particular factual background and the circumstances confronting the officers or guards (see, e.g., Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Often the credibility of witnesses will be a critical factor in these determinations (Davis v State of New York, 203 AD2d 234; McKinley v State of New York, decision, Claim Nos. 97500 & 97648, dated September 22, 2000, Lebous, J.[4])" (Kosinski v State of New York, Ct Cl, November 30, 2000 [Claim No. 97581, UID # 2000-028-0012] Sise, P.J., unreported; see also, Thomas v State of New York, Ct Cl, February 22, 2006 [Claim No. 103614, UID # 2006-032-500] Hard, J., unreported).

In the instant matter, the testimony of the claimant and her husband Bernard Scheffel present a version of the events at issue which is at odds in substantial and meaningful respects from that described by Court Officers Kennedy and Morrisey. The Court, having carefully observed the demeanor of the witnesses as they testified credits to a greater extent the testimony of Court Officer Kennedy that the claimant was attempting to walk through Officer Morrisey's extended arm in the direction of her brother Vincent with whom she was at the time involved in a heated and emotional discussion. Officer Kennedy advised the claimant to step away from Officer Morrisey and, when this direction was ignored, took hold of claimant's arm and redirected her away from the officer due to his concern that the claimant had positioned herself on Officer Morrisey's left side. Officer Kennedy was aware that Court Officer Morrisey was left-handed and wore his sidearm on his left side.

The Court finds from the testimony of all of the witnesses that at the time of the alleged contact claimant posed a potential threat to the peace or safety of others (see Harvey v Brandt, 254 AD2d 718, 719) and required restraint or redirection. The Court further finds that the amount of force used by Officer Kennedy was not unreasonable or excessive under the circumstances (see Passino v State of New York, 260 AD2d 915, supra; see also Rose v State of New York, Ct Cl, December 5, 2005 [Claim No. 108998, UID #2005-010-060] Ruderman, J., unreported). The Court determines that Officer Kennedy’s failure to identify himself as a Court Officer before making contact with the claimant is not determinative since at that time he was not effecting an arrest of the claimant (cf. Greggo v City of Albany, 58 AD2d 678).

Finally, it is settled that " '[t]he elements of a cause of action [to recover damages] for battery are bodily contact, made with intent, and offensive in nature' (Zgraggen v Wilsey, 200 AD2d 818, 819); see Laurie Marie M. v Jeffrey T.M., 159 AD2d 52, 55, affd 77 NY2d 981; Masters v Becker, 22 AD2d 118)" (Tillman v Nordon, 4 AD3d 467, 468). As in the Zgraggen case (supra), there is no question that there was bodily contact between claimant and Officer Kennedy and that the officer intended to make the contact. Here, however, claimant failed to show that the intended contact was itself " 'offensive', i.e., wrongful under all the circumstances" (Zgraggen v Wilsey, supra at 819). In fact, the Court finds that since the contact was necessary to keep the peace, prevent possible injury to claimant's brother and address the claimant's proximity of Officer Morrisey's firearm the contact was not offensive and claimant's causes of action for battery and use of excessive force are dismissed.

The Clerk shall enter judgment in accordance with this decision.


August 2, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[2].While the witnesses for both parties offered different though substantially similar versions of this phrase during their testimony the Court has chosen to use the phrase testified to as by the claimant in her redirect examination.
[3].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.
[4].McKinley v State of New York predates the advent of MacLaw and cannot be found on the Court's website.